The History of English Law before the Time of Edward I. Frederic William Maitland

can for a while be postponed or concealed, for there is a third and a powerful rival in the field. Latin becomes the written language of the law. It was a language understood and written by the learned men of both races: it was the language of such legal documents as the Normans knew, and, though it was not the language of the English dooms or the English courts, still it was the language of the English charters or land-books. In the second place, English had long been a written language, and a written language which could be used for legal and governmental purposes, while French was as yet hardly better than a vulgar dialect of Latin:—French would become Latin if you tried to write it at its best. And so the two languages which William used for his laws, his charters and his writs were Latin and English.² Again, there were good reasons why the technical terms of the Old English law should be preserved if the king could preserve them. They were the terms that defined his royal rights. On the whole he was well satisfied with the goodly heritage which had come to him from his cousin King Edward. If only he could maintain against his followers the rights of the old English kingship, he would have done almost as much as he could hope to do. And so his rights and their rights must be registered in the Old English terms. His clerks must still write, if not of sacu and socne, still of saca et soca. Many foreign words have made their way into Domesday Book, but many Old English words which had definite legal meanings were preserved.³

[p.61]Latin as a legal language. During the century that follows, Latin keeps its preeminence, and when, under Henry II. and his sons, the time comes for the regular enrolment of all the king’s acts and of all the judgments of his court, Latin becomes the language of our voluminous official and judicial records. From this position it is not dislodged until the year 1731, when it gives place to English.⁴ It were needless to say that long before that date both French and English had been used for some very solemn, perhaps the solemnest legal purposes; but seemingly we may lay down some such rule as this, namely, that if a series of records goes back as far as the twelfth or the first half of the thirteenth century, it will until the reign of George II. be a series of Latin records. It is only in the newer classes of authoritative documents that either English or French has an opportunity of asserting its claims. French becomes the language of the privy seal, while Latin remains the language of the great seal. French expels Latin and English expels French from the parliament rolls and the statute rolls, but these rolls are new in Edward I.’s day.⁵ In particular, Latin remains the language in which judicial proceedings are formally recorded, even though they be the proceedings of petty courts. In Charles I.’s day the fact that the Star Chamber has no proper Latin roll can be used as a proof that it is an upstart.⁶

Struggle between French and English.But, though throughout the middle ages some Latin could be written by most men who could write at all, and the lord of a manor would still have his accounts as well as his court rolls made up in Latin, still only the learned could speak Latin readily, and it could not become the language of oral pleading or of debate. Here was a field in which French and English might strive for the mastery. There could for a long while be no doubt as to which of these two tongues would be spoken in and about the king’s court. The king spoke French, his barons French, his prelates French, and even when barons and prelates were beginning to think of themselves [p.62] as Englishmen, some new wave of foreign influence would break over the court; the new French queen brings with her a new swarm of Frenchmen. And “the king’s court” was not then a term with several meanings; the language of courtiers and courtliness was of necessity the language of business, discussion, pleading. All this might well have happened, however, and yet the English language, which was in the future to be the language even of courtiers, might have retained its stock of old and its power of engendering new legal terms. A French-speaking royal tribunal might have been merely superimposed upon an English substructure. But here what is perhaps the main theme of our legal history decides the fate of words. Slowly but surely justice done in the king’s name by men who are the king’s servants becomes the most important kind of justice, reaches into the remotest corners of the land, grasps the small affairs of small folk as well as the great affairs of earls and barons. This is no immediate and no necessary effect of the Norman Conquest. It would never have come about if the nobles who helped William to conquer England could have had their way; William himself can hardly have dared to hope for it. The destiny of our legal language was not irrevocably determined until Henry of Anjou was king.

Victory of French.If we must choose one moment of time as fatal, we ought to choose 1166 rather than 1066, the year of the assize of novel disseisin rather than the year of the battle of Hastings. Then it was that the decree went forth which gave to every man dispossessed of his freehold a remedy to be sought in a royal court, a French-speaking court. Thenceforward the ultimate triumph of French law terms was secure. In all legal matters the French element, the royal element, was the modern, the enlightened, the improving element. The English stock of words is stricken with barrenness, the French stock can grow. The things of the law which have English names are things that are obsolete or obsolescent, sake and soke, wer and wite: —already men hardly know what these words mean.⁷ It is difficult [p.63] for us to believe that in the local courts, the suitors, who were for the more part peasants, pleaded their causes and rendered their judgments in French; still from the thirteenth century we get books of precedents for pleadings in manorial courts which are written in French, while we look in vain for any similar books written in English.⁸ We may suspect that if the villagers themselves did not use French when they assailed each other in the village courts, their pleaders used it for them, and before the end of the thirteenth century the professional pleader might already be found practising before a petty tribunal and speaking the language of Westminster Hall.⁹ Then in 1362 a statute, itself written in French, declared that as the French tongue was but little understood, all pleas should be “pleaded, shown, defended, answered, debated and judged” in the English tongue.¹⁰ But this came too late. It could not break the Westminster lawyers of their settled habit of thinking about law and writing about law in French, and when slowly French gave way before English even as the language of law reports and legal text-books, the English to which it yielded was an English in which every cardinal word was of French origin. How far this process had gone at the end of the thirteenth century we may learn from Robert of Gloucester’s historical poem. He sets himself to translate into English verse the Constitutions of Clarendon, and in so doing he uses the terms which we now write as custom, grant, lay fee, service, pleading, assize, judgment, traitor, chattels, felon, patron, advowson, court, plea, purchase, amendment, hold in chief, bailiff, homage, confirm, appeal, debt.¹¹ Down to the end of the middle ages a few Old English terms perdured which, at least as technical terms, we have since lost: English “domes-men” might still “deem dooms in a moot hall”; but the number of such terms was small and the blight of archaism was on them.¹²

French documents.Meanwhile men had begun to write French and to write it for legal purposes. Legal instruments in French come to us but very rarely, if at all, from the twelfth century;¹³ they become commoner [p.64] in the thirteenth and yet commoner in the fourteenth, but on the whole Latin holds its own in this region until it slowly yields to English, and the instruments that are written in French seldom belong to what we may call the most formal classes; they are wills rather than deeds, agreements rather than charters of feoffment, writs under the privy seal, not writs under the great seal.

      Language of Statute law.From the royal chancery Latin is not to be driven. The example set by the Conqueror when he issued laws in English as well as in Latin was not followed; Latin is the language for laws and ordinances until the middle of the thirteenth century. Then for one brief moment the two vulgar tongues appear on an equality; in 1258 Henry III. declared both in French and in English his acceptance of the provisions which were forced upon him in the parliament at Oxford.¹⁴ But while this English proclamation long remains unique, French forces its way to the front. It wrestles with Latin for the possession of the statute roll and